Haggai Mor

Application of property law to archaeological
collections in England

This
research examines implication of property law on archaeological collections in
England. Archaeological collections encapsulate material representations of
people’s heritage. The ownership of such artefacts assemblages can confer the
power of interpreting the past on whomever holds these collections, therefore it
is important to determine their ownership. Within English archaeology it is
assumed that title to finds assemblages remain with the owner of the land where
the finds were found. As asserted by the Institute For Archaeologists: “In
England, Wales, Northern Ireland and the Isle of Man ownership of objects rests
with the landowner, except where other law overrides this (e.g. Treasure Act,
1996, Burials Act 1857).” (Institute For Archaeologists (IFA) Code of Conduct,
paragraph 3.8.2 obtained from IFA website on August 2011).

In legal terms, this research deals with a
bailment situation arising from archaeologists taking possession of chattels to
which they do not have superior title. This bailment might then lead to tort
trespass to goods because archaeologists transfer possession of such
collections to national archives repositories. In accordance with the principle
of nemo dat qoud non habit, since
archaeologists do not obtain title in finds assemblages, when they deposit
finds in archives they can only transfer possession of the collection but
not title to it. In effect this could mean that national archaeological
archives do not have entitlement to possess parts of the collection of
artefacts they are storing. This then gives rise to more fundamental questions
of whether the right of individual landowners supersedes the right of the
community in which they live in respect of ownership of archaeological
material. To put it another way: should
archaeologists be regarded as stewards of the past and have the authority to
remove property from people’s land, and do landowners forfeit ownership of
their property purely by giving consent for an archaeological investigation to
take place?